Exploring e-discovery in federal courts

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The first year of a federal e-discovery program is now complete in the 7th Circuit, and despite its success one clear message sets the stage for how the pilot project moves forward: More Indiana judges and attorneys need to step up and get involved.

At an annual joint meeting of the 7th Circuit Bar Association and Judicial Conference for the 7th Circuit May 2-4, more than 600 lawyers and judges from the three-state Circuit converged on downtown Chicago for a conference that had at its core the e-discovery project that’s been under way since October.

With the pilot project serving as a backdrop, several seminars centered on the issue and each person attending a seminar the first day received a 70-page report on the first phase. The full 425-page report is available online at

james holderman Holderman

Running Oct. 1, 2009, to May 1, 2010, the pilot program is designed to streamline discovery and resolve e-discovery disputes by encouraging earlier and more informal meetings and conferences between attorneys and the court. A list of established principles identify the formats of this kind of contemporary discovery that are generally not required to be preserved in order to reduce litigation fights and overall costs.

“It’s a new decade, and it’s time for a new approach,” said Chief Judge Frank Holderman from the Northern District of Illinois, who led the pilot project’s first phase along with U.S. Magistrate Judge Nan Nolan. “E-discovery and electronically stored information is something that will be with us for the rest of our legal careers. That’s the way the world is now.”

On the opening day of the conference, Chief Judge Holderman pointed out that during United States Supreme Court Chief Justice John G. Roberts’ visit to Indiana University School of Law – Indianapolis in April, the justice spoke about the high costs of litigation that can stem from massive discovery. Chief Judge Holderman noted the irony that the comments came in Indianapolis, the same city where informal talks began at the 2009 7th Circuit meeting about establishing an e-discovery initiative.

“Judges and lawyers just haven’t been attuned to this … and that’s a frustration,” he said.

Those participating so far say the hope is that this multi-year, multi-phase process will change some of the distrust between opposing counsel and allow attorneys to get what they want in discovery quicker and more efficiently.

Generally, the pilot project is divided into early case assessment and education areas, with each of those subdivided into guidance regarding:

• The duty for attorneys to meet and confer and identify disputes for early resolution;

• E-discovery liaisons, who could be attorneys or third-party consultants familiar with a party’s e-discovery efforts and how those documents are stored or produced;

• Preservation requests and orders;

• Scope of preservation;

• Identification of electronically stored information;

• Production format; and

• Judicial expectations of counsel

During this initial stage, the program’s principles were applied to certain cases throughout the Circuit, with an emphasis on the Northern District of Illinois where Chief Judge Holderman and other key players are situated. More than 2,000 lawyers and judges participated in web seminars on the topic earlier this year; specifically 13 judges within the Northern District of Illinois – five District judges and eight magistrates – brought the concepts into 93 civil cases pending before them. Nearly 300 attorneys participated. While the participation is Illinois-focused, some Indiana and Wisconsin attorneys took part.

The newly released report on phase one shows that all participating judges either agreed or strongly agreed that the involvement of e-discovery liaisons made the process more efficient, and more than 90 percent thought the concepts increased or greatly increased counsels’ level of attention to the technologies involved in the discovery process and how their clients produce discovery from those systems.

Attorneys didn’t have as positive feedback to the e-discovery principles, according to the report. Less than half of the participating attorneys responded, but significantly 61 percent of those found the principles had no effect on the parties’ ability to resolve e-discovery disputes without court involvement. Respondents were fairly evenly divided as to the role of their respective clients regarding e-discovery; however, 43 percent reported that the principles improved the fairness of the discovery process, and 55 percent believed they had no effect on that fairness. Only 3 percent saw a decrease, the report shows.

While the attorney participation isn’t detailed in the full report, those leading the effort say the Indiana and Wisconsin communities weren’t as largely represented as they’d hoped. The little involvement from those states was a disappointment for this stage, leaders said. Tables were set up at the 7th Circuit conference for people to sign up to participate, and several attorneys from Indiana had written their names down.

Leaders hope to expand the geographic reach of the pilot program for the second phase – July 1, 2010, through May 2011 – as well as modify certain parts of the established principles or explore particular nuances that come up relating to e-discovery. This is largely because Chief Judge Holderman and Magistrate Nolan are both from Illinois’ Northern District, but also because other jurisdictions haven’t had the same kind of e-discovery issues in their own cases.

“Fortunately, we’ve been able to dodge those thornier e-discovery issues that others have faced in the Circuit,” said U.S. Magistrate Judge Tim A. Baker in the Southern District of Indiana, who participated in a panel discussion at the conference. “Not everything’s been smooth sailing at every stage, but by and large lawyers here and their clients have been addressing these e-discovery issues early on. That could be why there hasn’t been a rush to join, and I don’t know if there will be, but we certainly have that information.”

Listening to the presentations, Ice Miller attorney Brian Paul said he was enthused about the initiative but would like to see some more cost-shifting factored into the process, if costs are an important reason behind the project. If the courts consider cost-shifting when parties or plaintiffs request documents, that could scale down those initial requests and possibly fine-tune what’s being explored for discovery, he said.

During the conference, judges and lawyers from all jurisdictions said various parts of the pilot project are already being used in pending litigation they have. Sitting on an eight-person panel, Magistrate Judge Baker said he regularly pushes attorneys to meet and confer about discovery issues even before pre-trial conferences. That’s helped him avoid and resolve many possible discovery problems, he said.

Recently, that issue surfaced in a multi-million dollar case in which lawyers hadn’t discussed e-discovery before coming before him. They submitted a case management plan, but Magistrate Judge Baker denied that plan and ordered the attorneys to talk more before submitting a more comprehensive plan within 14 days. He expects that plan to be much more substantive in the discovery area, he said.

“You have to be willing to raise those issues at a pre-trial hearing,” Magistrate Judge Baker said.

debbie lynch Lynch

Magistrate Judge Debra McVicker Lynch from the Southern District of Indiana echoed that thought and said she wants attorneys to call her court to set up discovery conferences in order to address any communication issues they might have with opposing counsel.

She has three cases pending where e-discovery seems to be burdensome. After she set evidentiary hearings, the issues went away because counsel started talking more with IT people as a result and resolved the problems. If it’s a matter of one side’s attorney not responding adequately, a conference could motivate that party to respond, she said.

“(E-discovery) is not a subset of discovery anymore … almost every case discovery has some e-component to it,” she said. “But sometimes, we don’t know how complex an issue is.” •


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  1. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

  2. Here is an interesting 2012 law review article for any who wish to dive deeper into this subject matter: Excerpt: "Judicial interpretation of the ADA has extended public entity liability to licensing agencies in the licensure and certification of attorneys.49 State bar examiners have the authority to conduct fitness investigations for the purpose of determining whether an applicant is a direct threat to the public.50 A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided by § 35.139.”51 However, bar examiners may not utilize generalizations or stereotypes about the applicant’s disability in concluding that an applicant is a direct threat.52"

  3. We have been on the waiting list since 2009, i was notified almost 4 months ago that we were going to start receiving payments and we still have received nothing. Every time I call I'm told I just have to wait it's in the lawyers hands. Is everyone else still waiting?

  4. I hope you dont mind but to answer my question. What amendment does this case pretain to?

  5. Research by William J Federer Chief Justice John Marshall commented May 9, 1833, on the pamphlet The Relation of Christianity to Civil Government in the United States written by Rev. Jasper Adams, President of the College of Charleston, South Carolina (The Papers of John Marshall, ed. Charles Hobson, Chapel Hill: Univ. of North Carolina Press, 2006, p, 278): "Reverend Sir, I am much indebted to you for the copy of your valuable sermon on the relation of Christianity to civil government preached before the convention of the Protestant Episcopal Church in Charleston, on the 13th of February last. I have read it with great attention and advantage. The documents annexed to the sermon certainly go far in sustaining the proposition which it is your purpose to establish. One great object of the colonial charters was avowedly the propagation of the Christian faith. Means have been employed to accomplish this object, and those means have been used by government..." John Marshall continued: "No person, I believe, questions the importance of religion to the happiness of man even during his existence in this world. It has at all times employed his most serious meditation, and had a decided influence on his conduct. The American population is entirely Christian, and with us, Christianity and Religion are identified. It would be strange, indeed, if with such a people, our institutions did not presuppose Christianity, and did not often refer to it, and exhibit relations with it. Legislation on the subject is admitted to require great delicacy, because freedom of conscience and respect for our religion both claim our most serious regard. You have allowed their full influence to both. With very great respect, I am Sir, your Obedt., J. Marshall."